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Commentary: The art of judicial selection: Lessons for Obama from Brandeis and Freund

This article first appeared in the St. Louis Beacon, May 19, 2009 - In deciding whom to nominate to the Supreme Court, President Barack Obama might well consider lessons from earlier decisions by Democratic presidents involving two related legal giants.

President Woodrow Wilson's nomination of Louis D. Brandeis in 1916, though intensely controversial at the time, produced the greatest justice of the 20th century. President John F. Kennedy's decision not to nominate Brandeis' former law clerk and protege, Professor Paul A. Freund of Harvard Law School (and originally from St. Louis), roughly 45 years later, cost the country another justice with historic potential.

The episodes suggest a common lesson: Presidents serve both their country, and their legacy best when they look for potential greatness in filling court vacancies.

As a lawyer in the early 20th century, Brandeis had challenged powerful corporate interests and exposed government corruption and inefficiency. Accordingly, his nomination to fill a Supreme Court vacancy thrilled progressives and dismayed conservatives.

Brandeis' critics mounted a fierce, no-holds-barred attack on his nomination. Some condemned Brandeis as a radical with unAmerican views.

Former President William Howard Taft was one of seven former presidents of the American Bar Association who signed a statement that denounced Brandeis as not "fit" for the court; 55 prominent Bostonians, including Harvard President A. Lawrence Lowell, opposed their fellow townsman as lacking the requisite "judicial temperament and capacity."

Some concocted charges against Brandeis' ethics; others insisted that Justice Joseph R. Lamar of Georgia should be replaced by a Southerner. Some opposition reflected anti-Semitism against Brandeis.

Ultimately, Brandeis' nomination barely emerged from a Senate subcommittee and Senate committee on straight party line votes with no margin to spare. Senate confirmation of Brandeis was also on essentially a party line vote.

Brandeis served for 23 years on the Supreme Court. He was deferential to the work of the people's elected representatives in Congress and state legislatures and respectful of the role of the states in a federal system of government. Brandeis championed individual liberty, particularly freedom of expression and privacy, in ways that continue to shape American thought. He is commonly recognized as one of the greatest justices in American history.

Wilson had political reasons to select Brandeis. He hoped Brandeis' nomination would help mobilize progressives behind his candidacy for re-election. But rather than nominate based on regional considerations or avoid a controversial choice, Wilson, to his credit, chose someone who was brilliant, principled and independent. Brandeis' service reflected well on Wilson and benefitted the country far more than a less talented, but more easily confirmed, alternative would have.

Roughly 45 years after Wilson nominated Brandeis, President John F. Kennedy twice missed the opportunity to appoint a great justice because he let the wrong criteria guide his selection. Rather than select Paul Freund, perhaps the nation's most widely respected constitutional scholar and certainly Brandeis' most eminent interpreter, to the court when two vacancies arose in 1962, Kennedy nominated Byron "Whizzer" White and then Arthur Goldberg.

Freund was among those Kennedy considered seriously. Whereas White and Goldberg had both accepted, and served with distinction in, important positions in the Kennedy administration, Freund had declined the president's request that he serve as solicitor general in the justice department.

Accordingly, Attorney General Robert F. Kennedy opposed Freund's nomination to the court, and authoritative accounts suggest that his arguments influenced his brother's decisions.

White and Goldberg were dedicated public servants, but neither became a great justice. White served for more than three decades as an able, but unspectacular, justice; Goldberg left the court after serving for less than three years to become ambassador to the United Nations without leaving much of a record as a jurist.

By contrast, Freund, might well have been a great and long-serving member of the court. He had an uncommon understanding and appreciation of, even reverence for, the court and the Constitution. He understood, as he put it, that the issues presented to the court more often involved contests between competing claims of rights than between right and wrong. He likely would have helped the court constructively and even harmoniously navigate some of the vexing issues it faced during the quarter century or so in which he might have served.

Freund did not have the same association with JFK as did White and Goldberg; yet, in view of his special gifts, his nomination would have contributed to Kennedy's legacy, and to the court, much more than did the appointments Kennedy made.

The Brandeis selection, and the Freund nomination-that-wasn't, provide common lessons for President Obama: Don't shy from controversy; don't become distracted by artificial considerations. And ultimately, looking for potential greatness in choosing a Supreme Court nominee serves America best.

Joel K. Goldstein is an authority on the vice presidency and a professor of law at Saint Louis University School of Law..

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